State v. Collymore , 168 Conn. App. 847 ( 2016 )

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STATE OF CONNECTICUT v. ANTHONY
COLLYMORE
(AC 37703)
Gruendel, Lavine and Mullins, Js.*
Argued January 14—officially released October 11, 2016
(Appeal from Superior Court, judicial district of
Waterbury, Cremins, J.)
Susan M. Hankins, assigned counsel, for the appel-
lant (defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Maureen Platt,
state’s attorney, and Cynthia S. Serafini, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
GRUENDEL, J. It is well established that the state
may immunize from prosecution a witness called in its
case-in-chief. See generally General Statutes § 54-47a.
The primary question in this appeal is whether the state,
after immunizing such a witness for testimony given
during the state’s case-in-chief, may decline to extend
that immunity to the same witness in connection with
his testimony during the defense case-in-chief. Here,
we conclude that the state was not required to grant
three prosecution witnesses additional immunity for
their testimony during the defense case-in-chief, and
that the court’s refusal during the defense case-in-chief
to compel those witnesses to testify when they invoked
their fifth amendment right to remain silent was proper
as to some testimony and harmless as to the rest.
Accordingly, because we conclude that the remainder
of the defendant’s claims—three evidentiary claims and
a claim that the court improperly penalized the defen-
dant at sentencing for electing to go to trial—also lack
merit, we affirm the judgment of conviction.
The defendant, Anthony Collymore, appeals from that
judgment, rendered after a jury trial, of (1) felony mur-
der in violation of General Statutes § 53a-54c; (2)
attempt to commit robbery in the first degree in viola-
tion of General Statutes §§ 53a-49 (a) (2) and 53a-134
(a) (2); (3) conspiracy to commit robbery in the first
degree in violation of General Statutes §§ 53a-48 (a)
and 53a-134 (a); and (4) criminal possession of a firearm
in violation of General Statutes § 53a-217 (a) (1).1
At trial, the jury reasonably could have found the
following facts. On January 18, 2010, the defendant and
two of his friends, Rayshaun Bugg and Vance Wilson
(Vance), were driving around Waterbury in a white,
four door, rental Hyundai that the defendant’s aunt and
uncle had lent to him, looking to rob someone. Eventu-
ally the three men drove into the Diamond Court apart-
ment complex, which comprises eight apartment
buildings. Halfway down the main road of the complex,
the men saw an expensive-looking, black Acura sport
utility vehicle (SUV) and decided to rob its driver.
They drove down a small road behind the apartments,
where the defendant and Vance pulled out their guns
and exited the Hyundai, saying that they were going to
rob the driver of the SUV. The defendant had a .38
revolver and Vance had a .357 revolver. Bugg drove to
the end of the small road and waited. The defendant
and Vance reached the SUV, saw two young children
running toward its driver, and decided to call off the
robbery. The SUV drove away.
The defendant and Vance then saw seventeen year
old John Frazier (victim) and decided to rob him. As
they were trying to rob him, he slapped away one of
their guns and ran toward his apartment, at the entrance
to the complex. The defendant and Vance both fired
shots at the victim.
Bugg drove up, the defendant and Vance ran over to
the Hyundai and got in, and they sped off to the apart-
ment of Jabari Oliphant, a close friend who lived in
Waterbury. There, the defendant and Vance explained
to Bugg and Oliphant what had just transpired at Dia-
mond Court, namely, that they had intended to rob the
man in the SUV but decided not to when they saw his
young children; instead, they tried to rob the victim and
shot him when he resisted. They then asked Oliphant
if he had something to clean their guns.
Police arrived at Diamond Court within minutes of
the shooting and found the fatally wounded victim in
front of his family’s apartment. An autopsy revealed
that a single .38 class bullet through the victim’s heart
had killed him.2 The defendant was arrested and tried.
At trial, the state’s case included more than thirty
witnesses, who testified over the course of fifteen days.
A jury found the defendant guilty, and the court imposed
a sentence of eighty-three years in prison. The defen-
dant now appeals from that conviction.
I
The defendant’s first claim is that the court improp-
erly failed to compel three defense witnesses to testify.
Specifically, the defendant argues that the court
improperly allowed the state to revoke the immunity
of three prosecution witnesses when they were called
as defense witnesses, then improperly allowed those
witnesses to invoke their fifth amendment right and
refuse to testify, and that these two errors combined to
unconstitutionally deny the defendant these witnesses’
exculpatory testimony.
A
The following additional facts and procedural history
are relevant to this claim. At the defendant’s trial, the
state granted immunity to three witnesses—Bugg,
Vance, and Oliphant—in exchange for their testimony
during the state’s case-in-chief. Although they were
called as prosecution witnesses, once they began to
testify, these witnesses repudiated prior statements
inculpating the defendant and testified so as to exoner-
ate him, reiterating their exculpatory testimony when
the defense cross-examined them. The defendant
sought to examine those witnesses again during his
case-in-chief but, this time, each witness invoked his
fifth amendment right and refused to answer many or
all questions asked.
The inculpatory evidence from these three witnesses
came from recorded statements they gave before trial
to various authorities, which the court admitted for
substantive purposes.3 The statements differed mark-
edly from the trial testimony, and each of the three
witnesses repudiated his statements at length during
the state’s direct examination and the defendant’s cross-
examination. We discuss each witness in turn.4
1
Bugg was the first of the three witnesses granted
immunity. When the state called him to testify in its
case-in-chief, he communicated through his attorney
that he would be invoking his fifth amendment right
against self-incrimination, fearing that the state might
bring drug charges against him for his activities on the
night of the shooting and perjury charges if he contra-
dicted the testimony he had given at the defendant’s
probable cause hearing. The state told the court: ‘‘Your
Honor, based on our review of the statute, the state
intends to give [Bugg] use immunity for any drug activity
he was engaged in on January 18, 2010. . . . [In addi-
tion] the state does not intend to prosecute [Bugg] for
any perjury that he may have committed at the probable
cause hearing.’’ The court informed Bugg that as a
result, ‘‘your [immunity under the statute] doesn’t exist,
because the state has removed [the possibility of prose-
cution that] would otherwise allow you to [claim the
immunity].’’ Bugg indicated that he understood. The
court instructed the jury that ‘‘under [§] 54-47a, [Bugg]
has been compelled to testify . . . .’’
a
Bugg’s Testimony during State’s Case-in-Chief
When the state examined Bugg during its case-in-
chief, he testified that on January 18, 2010, he, the
defendant and Vance drove to Diamond Court to buy
drugs from ‘‘the weed man,’’ and then drove to Oli-
phant’s apartment. Bugg acknowledged under ques-
tioning that this story differed from the police statement
he gave on February 10, 2011, and from his testimony
at the defendant’s probable cause hearing on August 30,
2011. In repudiating his earlier statements, he claimed,
however, that the police had forced him to sign the
statement after writing it themselves and that he had
testified falsely at the probable cause hearing in
exchange for a plea deal.
On cross-examination, Bugg reiterated that, on Janu-
ary 18, 2010, there was never any plan to rob someone,
they were ‘‘going to get some weed, that was the whole
thing,’’ and he did not see the defendant or Vance with
a gun that night. Bugg testified that he signed the police
statement in exchange for a plea deal and because the
police beat him, and that his testimony at the probable
cause hearing was part of the same plea deal.
b
Bugg’s Prior Inconsistent Statements
The state submitted the two statements made by Bugg
prior to his testimony at trial, both of which were admit-
ted into evidence for substantive purposes under State
v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,
479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).
First, the state introduced Bugg’s police statement,
made on February 10, 2011, through Lieutenant Michael
Slavin, one of the detectives who had taken it. Slavin
testified that Bugg had agreed with the statement he
had given to the police and that the police did not beat
or threaten Bugg. The court admitted the statement as
a full exhibit.
Bugg stated to the police that on January 18, 2010,
he, the defendant and Vance were driving around when
the defendant and Vance saw a black Acura SUV at
Diamond Court, pulled out their guns, told Bugg that
they were going to rob its driver, and got out of the
car. Bugg saw the defendant with a .38 revolver and
Vance with a .357. Soon, Bugg heard five or six gunshots
and saw the defendant and Vance running up. They got
into the Hyundai and told Bugg to drive, and he sped
away. When they arrived at Oliphant’s apartment, Vance
and the defendant explained to Bugg that ‘‘the guy in
the Acura had a baby in it, so they felt bad; instead
[they] took the young nigga.’’ The defendant told Bugg
that Vance ‘‘ha[d] his gun to the [victim’s] chest’’ while
they were trying to rob him, ‘‘and the [victim] tried to
grab it and they started to tussle over the gun, [and]
that is why he shot him.’’ While the defendant was
talking, Vance asked for some ammonia so that he could
clean off his gun.
Second, Bugg’s probable cause hearing statement,
made on August 30, 2011, was admitted into evidence
through the testimony of the court reporter who had
recorded and transcribed it. At the probable cause hear-
ing, Bugg had testified that the defendant and Vance
decided to rob the man in the Acura SUV, that they went
to do so, that he heard gunshots, that the defendant and
Vance came running to the Hyundai, that they got in
and he drove off, and that at Oliphant’s apartment they
had stated that they robbed someone else instead.
c
Bugg’s Testimony during Defense Case-in-Chief
When the defense told the court that it would be
calling Bugg as a witness, the state told the court that
‘‘the state’s granting of immunity to the—the prosecu-
tion witnesses does not extend to them as defense wit-
nesses . . . .’’ The court told Bugg that there was ‘‘an
issue as to whether or not the immunity that the state
gave [him] when [he was] here before applie[d] to [his]
testimony now, because now [he was] being called by
the defendant . . . and that issue, whether or not the
immunity attache[d] [was] unclear,’’ so ‘‘what [he]
should do is be guided by what [his] attorney,’’ who
would be sitting next to him during his testimony,
‘‘advise[d] [him] as to answering any of the questions.’’
When the state added that, ‘‘notwithstanding the court’s
position, it is the state’s that [Bugg] is not being given
. . . immunity for his testimony at this point in time,’’
the court clarified, ‘‘I want to be sure this is clear for
the record. I believe what I said to [Bugg] is that the
law is unclear as to whether or not the immunity he
was given by the state relates to his testimony as a
defense witness.’’
In response to questions about the night of January
18, 2010, Bugg testified that he was driving the Hyundai
that night, that he ‘‘thought they was going to get some
weed,’’ and that he did not know where the shooting
occurred because he ‘‘was in a car.’’ Bugg asserted his
fifth amendment rights when asked where he drove
after the defendant and Vance exited the car, and where
he was when he heard gunshots. Bugg also answered
defense counsel’s questions about various phone calls
he had made from prison and asserted his fifth amend-
ment rights for only one such question—after testifying
that his cousin, Marquise Foote, had stolen from him,
he asserted his fifth amendment rights when asked what
was stolen.
As to his testimony at the probable cause hearing,
Bugg agreed with the defense counsel that he had testi-
fied at that hearing ‘‘for the purpose of getting a deal,’’
but asserted his fifth amendment rights when asked if
his testimony at that hearing was true.
2
Vance was the second of the three witnesses granted
immunity. When the state called him to testify, he
waived his fifth amendment right against self-incrimina-
tion. The state later clarified that it had granted Vance
immunity ‘‘for a claim of false statement . . . .’’
a
Vance’s Testimony during State’s Case-in-Chief
During the state’s case-in-chief, Vance testified that
on January 18, 2010, he and Bugg accompanied the
defendant to Diamond Court to collect $3000 from
someone so that the defendant could repay Vance for
heroin Vance had given the defendant. Vance believed
that they were ‘‘going to ask [the man] where the money
is. That’s all.’’ When they arrived, that man drove off,
Vance punched the defendant in the jaw and, believing
that the defendant was ‘‘reaching for something,’’ Vance
shot at the defendant with a .357 Taurus Magnum
revolver as he ran away. Vance testified that he had
never seen the defendant with a gun but had seen him
with a knife. Soon, the defendant got back into the car
with Vance and Bugg, and they drove off.
The state asked Vance about his two prior accounts
of the shooting—his statement to police on February
22, 2011, and his guilty plea on February 21, 2012—
both of which differed from his trial testimony. Vance
claimed that he signed the police statement only
because he had been threatened with the death penalty
and that he entered his guilty plea in exchange for a
sentence of only thirty to fifty years’ incarceration.
When questioned about his police statement and guilty
plea, Vance repudiated both and persisted in his story
about driving to Diamond Court to collect money owed
him for heroin.
On cross-examination, Vance essentially reiterated
his testimony given on direct examination.
b
Vance’s Prior Inconsistent Statements
The state submitted the two statements made by
Vance prior to his testimony at trial, both of which were
admitted into evidence for substantive purposes under
State v. Whelan, supra, 200 Conn. 753.
First, the state introduced Vance’s police statement,
made on February 22, 2011, through Slavin, who testi-
fied that Vance had signed at the bottom of each page
and that no one threatened or forced him to do so. In
Vance’s statement, he said that on January 18, 2010, he,
the defendant and Bugg drove to Diamond Court where
they saw a black Acura SUV and decided to rob its
driver. Vance took out a .357 revolver, the defendant
took out a .38 revolver, and they exited the car and ran
up to the SUV, but they then saw two young children,
causing them ‘‘to let it go.’’ The SUV drove off. Vance
and the defendant then saw the victim walking by and
decided to rob him. The defendant stuck his gun in the
victim’s chest, saying, ‘‘you know what it is,’’ but the
victim slapped the gun away and took off running. The
defendant and Vance each fired two or three shots in
the victim’s direction before getting into their car and
driving to Oliphant’s apartment. There, the defendant
asked for Vance’s gun so he could dispose of it and
his gun.
Second, Vance’s guilty plea statement was admitted
into evidence through the testimony of the court moni-
tor who recorded and transcribed it. At the guilty plea
hearing, Vance had admitted that the defendant asked
him to commit a robbery; that he, the defendant, and
Bugg decided to rob the man in the SUV; that both he
and the defendant had guns; that the defendant’s gun
was a .38; that they decided against robbing the SUV
when they saw its driver had young children; that they
tried to rob the victim instead; that the defendant ran
up to the victim first and put a gun to his chest; that
Vance fired two or three shots when the victim ran;
that the defendant fired shots as well; and that back at
Oliphant’s apartment on Walnut Street, Vance gave his
gun to the defendant when asked.
c
Vance’s Testimony during Defense Case-in-Chief
When the defense called Vance as a witness, the state
asserted that ‘‘it is the state’s position that any testimony
that he gives at this portion of the proceeding is not
covered by . . . immunity.’’ The court repeated to
Vance the same advisement it had given Bugg concern-
ing immunity and told him to ‘‘be guided by the advice
of your attorney and that’s—that’s the way we
should proceed.’’
The court asked for an offer of proof outside the
presence of the jury, during which defense counsel
asked what the police said when they took Vance’s
statement, whether Vance shot the victim, and whether
Vance called a person named Karen Atkins in June,
2012. Vance replied: ‘‘Based on the advice of my coun-
sel, I’m going to invoke my fifth amendment right.’’
Although the defendant argued that Vance had no
valid fifth amendment right to assert, the state and
Vance’s attorney argued that Vance had yet to be sen-
tenced on a guilty plea to various charges arising from
the January 18, 2010 shooting; that the plea deal allowed
a sentence in the range of thirty to fifty years; and that
until Vance was sentenced his fifth amendment right
against self-incrimination continued to apply to the
events of January 18, 2010. The court held that Vance’s
fifth amendment right continued to apply until after
sentencing and that, because the state ‘‘sa[id] on the
record that [Vance] is not being immunized with respect
to his testimony as a defense witness,’’ therefore he
‘‘properly, in my view, invoked his fifth amendment
privilege.’’ Because it would be improper to call a wit-
ness for the sole purpose of having him invoke the fifth
amendment in front of the jury; see State v. Person,
215 Conn. 653, 660–61, 577 A.2d 1036 (1990), cert.
denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 776
(1991); the court excused Vance without having him
testify as a defense witness.
3
Oliphant was the third of the three witnesses granted
immunity in connection with the defendant’s trial. When
the state called him to testify, he communicated through
his attorney that he would be invoking his fifth amend-
ment right against self-incrimination. Oliphant’s attor-
ney discussed with the court Oliphant’s fear that the
state might bring false statement charges against him
if he contradicted his statement to police, and hindering
prosecution charges for his interactions with the defen-
dant, Vance, and Bugg after the shooting. After a collo-
quy with the prosecutor, the court told Oliphant, ‘‘you
don’t have a fifth amendment privilege because . . .
you have been given transactional immunity by the
state.’’ Oliphant said that he understood.
a
Oliphant’s Testimony during State’s Case-in-Chief
During questioning in the state’s case-in-chief, Oli-
phant testified that on the night of January 18, 2010,
he was at the apartment on Walnut Street when the
defendant, Vance, and Bugg came over. Privately, Vance
told Oliphant that he had just killed someone, and
wanted to kill Bugg and the defendant ‘‘because he
didn’t want to leave no witnesses.’’ A couple of days
later, Bugg told Oliphant that the defendant, Vance, and
he had been driving around drinking and smoking that
night, when Vance ‘‘saw somebody walking down the
street, hopped out [of] the car, [and] tried to rob him.
The [victim] fought [Vance] off and [Vance] shot [the
victim]. [Vance] jumped back in the car and they sped
off.’’ Oliphant further testified that the defendant never
talked about the shooting with him, and that Oliphant
had never seen the defendant with a gun, but that he
had seen Vance with a .357 caliber gun before the Janu-
ary 18, 2010 shooting.
Oliphant acknowledged that this story differed from
the statement he had given to the police on February
2, 2011. He claimed, however, that the police made him
sign that statement after beating him for hours, while he
was high on PCP and alcohol. When the state questioned
Oliphant line by line, he again repudiated his statement
and persisted in his story that he was told that Vance
got out of the car alone and robbed a passerby.
On cross-examination, defense counsel examined
Oliphant extensively about his statement, which Oli-
phant repudiated and said he signed only because police
beat him and a prosecutor ‘‘was offering [him] deals to
perjure [him]self . . . .’’
b
Oliphant’s Prior Inconsistent Statement
The state submitted Oliphant’s police statement into
evidence and the court admitted it for substantive pur-
poses under State v. Whelan, supra, 200 Conn. 753. The
state again called Slavin as a witness, who testified that
he had taken Oliphant’s police statement in the same
manner he had taken Bugg’s and Vance’s statements,
and that no one forced or threatened Oliphant to sign.
In the statement, Oliphant said that on the night of
January 18, 2010, at the apartment on Walnut Street,
Vance and the defendant both told Oliphant that they
had been driving around with Bugg looking to rob some-
one when they saw the victim in the Diamond Court
apartment complex. They told Oliphant that they tried
to rob the victim, but when he fought back and ran
toward his apartment, Vance shot him in the back. At
some point, Bugg also spoke with Oliphant and told
him that the defendant, Vance, and he were driving
around in the white car on January 18, 2010, looking
for someone to rob, that they saw the victim in the
Diamond Court apartment complex, and that Vance
shot the victim as he ran away. Oliphant previously had
seen Vance with a .357 caliber gun and the defendant
with a .38 caliber revolver.
c
Oliphant’s Testimony during Defense Case-in-Chief
When the defense tried to call Oliphant as a witness,
the state told the court that ‘‘it’s the state’s position
that the immunity that was given to Mr. Oliphant when
he testified as a prosecution witness in the state’s case-
in-chief . . . ended . . . and he has no immunity for
anything that goes on today.’’ The court advised Oli-
phant concerning immunity as it had Bugg and Vance
and told him to ‘‘be guided . . . by [his] attorney’s
advice . . . .’’ Oliphant’s attorney said that Oliphant
would not answer any questions ‘‘[b]ased on the repre-
sentation that immunity will not be extended to him
being called as a defense witness.’’
During an offer of proof outside the presence of the
jury, defense counsel asked several questions about
Oliphant’s February 2, 2011 statement to the police.
Oliphant invoked the fifth amendment when asked if
he was beaten on that date and what he had meant by
part of his trial testimony as a prosecution witness,5
but he did testify that, on February 2, 2011, he was
arrested with a man named Jamel, whom he had not
known for long. The state asked three questions on
cross-examination—how, and for how long, had Oli-
phant known Jamel before their arrest; and did they
have narcotics when arrested. Oliphant asserted his
fifth amendment rights in response to each question.
The state argued that Oliphant could not selectively
assert his fifth amendment rights, testifying about a
subject for the defense but refusing to answer the state’s
questions about the same subject. Defense counsel
agreed that if Oliphant did so, then he would be unavail-
able for cross-examination and so the court would have
to strike his testimony. See State v. Marsala, 44 Conn.
App. 84, 92–93, 688 A.2d 336 (court properly struck
defendant’s entire testimony where he refused to
answer questions on cross-examination), cert. denied,
240 Conn. 912, 690 A.2d 400 (1997). The court held that,
because Oliphant ‘‘indicated he is not going to respond
to any of the questions asked on cross-examination by
the state,’’ it would be futile to call him as a witness
only to have his testimony stricken. Accordingly, the
court released Oliphant from the subpoena with which
he had been served, and he did not testify as a
defense witness.
B
With that factual history in mind, we now turn to the
defendant’s first claim on appeal, which is that the court
improperly (1) allowed the state to revoke the immunity
of Bugg, Vance, and Oliphant, three prosecution wit-
nesses, when they were called as defense witnesses;
and (2) failed to compel those three witnesses to testify
when they asserted their fifth amendment rights as
exculpatory testimony. We address each argument in
turn.
1
The defendant argues that the court improperly
allowed the state to ‘‘revoke’’ its grant of immunity to
Bugg, Vance, and Oliphant when they were called as
defense witnesses and, that the revocations violated
the defendant’s rights to due process and a fair trial
under the fourteenth amendment to the United States
constitution, as well as his rights to compulsory process
and to present a defense under the sixth amendment6
to the United States constitution.7 As we have noted,
the state initially had granted each witness immunity
during the prosecution’s case-in-chief, pursuant to § 54-
47a.8 When the defendant called those same witnesses
for his case-in-chief, the state told each of them that
they no longer had immunity.
The defendant characterizes this as a ‘‘revocation’’
of immunity and argues that such a revocation violated
his constitutional rights because it effectively prevented
the witnesses from testifying. By contrast, the state
argues that it ‘‘did not revoke grants of immunity to any
of its witnesses’’ and that the real question is whether
the court properly held that the state need not grant
additional immunity to those witnesses. (Emphasis
added.) We agree with the state that, because it did not
revoke the witnesses’ immunity and the court properly
held that the state was under no obligation to grant
them additional immunity, the defendant’s constitu-
tional rights were not violated.
First, to the extent that the defendant claims that the
court violated his constitutional rights by misapplying
§ 54-47a to permit the state to revoke immunity pre-
viously granted under § 54-47a, we must interpret that
statute. ‘‘To the extent that the [defendant’s] claim
requires us to interpret the requirements of [a statute],
our review is plenary.’’ In re Nevaeh W., 317 Conn. 723,
729, 120 A.3d 1177 (2015). We begin with the statute’s
text and relationship to other statutes, and consider
other evidence of its meaning only if the text itself is
either ambiguous or yields absurd results. Id., 729–30.
Section 54-47a has two parts. Section 54-47a (a) pro-
vides in relevant part: ‘‘Whenever in the judgment of
. . . a state’s attorney . . . the testimony of any wit-
ness . . . in any criminal proceeding involving . . .
felonious crimes of violence . . . or any other class A,
B or C felony . . . [is necessary to obtain] sufficient
information as to whether a crime has been committed
or the identity of the person or persons who may have
committed a crime . . . [and] is necessary to the public
interest . . . the state’s attorney . . . may, with
notice to the witness, after the witness has claimed his
privilege against self-incrimination, make application
to the court for an order directing the witness to tes-
tify . . . .’’
Section 54-47a (b) provides in relevant part: ‘‘Upon
the issuance of the order such witness shall not be
excused from testifying . . . on the ground that the
testimony . . . may tend to incriminate him or subject
him to a penalty or forfeiture. No such witness may be
prosecuted or subjected to any penalty or forfeiture
for or on account of any transaction, matter or thing
concerning which he is compelled to testify . . . and
no testimony . . . so compelled, and no evidence dis-
covered as a result of or otherwise derived from testi-
mony . . . so compelled, may be used as evidence
against him in any proceeding, except that no witness
shall be immune from prosecution for perjury or con-
tempt committed while giving such testimony . . . .’’9
The plain language of § 54-47a (b) thus provides that,
if a witness is compelled to testify about a ‘‘transaction,
matter or thing,’’ then the witness cannot be ‘‘prose-
cuted or subjected to any penalty or forfeiture for or on
account of’’ that transaction, matter, or thing. Nothing in
the statute suggests that a prosecutor may later revoke
that immunity, before or after the witness testifies, and
decide to prosecute the witness after all. Indeed, if
the state had such power, then the immunity promised
under § 54-47a would be an empty gesture. We conclude
that, in the absence of special circumstances, once the
state grants a witness immunity under § 54-47a, it
plainly lacks the power to revoke that immunity.
Accordingly, to the extent that Bugg, Vance, or Oliphant
was compelled under § 54-47a to testify about a transac-
tion, matter, or thing during the state’s case-in-chief,
then, from that point on, the state could no longer
prosecute them for or on account of it.10
The state argues, and we agree, that it ‘‘did not revoke
grants of immunity to any of its witnesses.’’ (Emphasis
added.) Given the constraints imposed by § 54-47a, the
state’s comments to the three witnesses are best under-
stood not as a ‘‘revocation’’ of the immunity that they
already had, but rather as a refusal to grant those wit-
nesses additional immunity.11 To wit, the state did not
wish to grant them both transactional immunity from
prosecution for any transactions discussed for the first
time during the defense case-in-chief, and use or deriva-
tive use immunity that would bar the state from using
their defense testimony—or evidence derived from it—
in any potential prosecutions against them that the state
could still legally pursue.
The question is not one of revocation. Rather, the
question is whether any of the constitutional provisions
cited by the defendant required the state to grant that
additional immunity to those witnesses.
We therefore turn to whether the state was required
to grant the three witnesses additional immunity for
their testimony as defense witnesses. ‘‘As a threshold
matter, we must first determine the applicable standard
of review that governs our examination of the defen-
dant’s claims. The issue of whether a defendant’s rights
to due process and compulsory process require that a
defense witness be granted immunity is a question of
law and, thus, is subject to de novo review. . . .
‘‘[A] defendant has a right under the compulsory pro-
cess and due process clauses to present [his] version
of the facts as well as the prosecution’s to the jury
so [that] it may decide where the truth lies. . . . The
compulsory process clause of the sixth amendment gen-
erally affords an accused the right to call witnesses
whose testimony is material and favorable to his
defense . . . .
‘‘We begin our analysis with the statutory provision
concerning prosecutorial immunity for witnesses. [Sec-
tion] 54-47a authorizes the prosecution to grant immu-
nity to state witnesses under certain circumstances.
We explicitly have held that § 54-47a confers no such
authority upon the courts with regard to defense wit-
nesses. . . . Indeed, this court has held repeatedly that
there is no authority, statutory or otherwise, enabling
a trial court to grant immunity to defense witnesses.
. . . We have no occasion to revisit those holdings
today.
‘‘We recognize that other courts have held that under
certain compelling circumstances the rights to due pro-
cess and compulsory process under the federal consti-
tution require the granting of immunity to a defense
witness. The federal Circuit Courts of Appeals have
developed two theories pursuant to which the due pro-
cess and compulsory process clauses entitle defense
witnesses to a grant of immunity. They are the effective
defense theory, and the prosecutorial misconduct the-
ory. . . .
‘‘Under the effective defense theory . . . the trial
court has the authority to grant immunity to a defense
witness when it is found that a potential defense witness
can offer testimony which is clearly exculpatory and
essential to the defense case and when the government
has no strong interest in withholding . . . immunity
. . . . The Third Circuit [Court of Appeals] has held
explicitly that under the effective defense theory
[i]mmunity will be denied if the proffered testimony is
found to be ambiguous [or] not clearly exculpatory
. . . .
‘‘The prosecutorial misconduct theory of immunity
is based on the notion that the due process clause
[constrains] the prosecutor to a certain extent in [its]
decision to grant or not to grant immunity. . . . Under
this theory, however, the constraint imposed by the due
process clause is operative only when the prosecution
engages in certain types of misconduct, which include
forcing the witness to invoke the fifth amendment or
engaging in discriminatory grants of immunity to gain a
tactical advantage, and the testimony must be material,
exculpatory and not cumulative, and the defendant
must have no other source to get the evidence.’’ (Citation
omitted; emphasis added; internal quotation marks
omitted.) State v. Kirby, 280 Conn. 361, 403–404, 908
A.2d 506 (2006).
Our Supreme Court previously has declined to decide
whether either of these theories is correct, in the
absence of circumstances that would then warrant
reversal of a judgment on that basis. Id., 405. The pre-
sent case again provides no occasion to reach the cor-
rectness of either theory.
To succeed under the effective defense theory, a
defendant must show that the testimony at issue was
‘‘ ‘essential’ ’’ to the defense. Id., 404; see, e.g., United
States v. MacCloskey, 682 F.2d 468, 475, 479 (4th Cir.
1982) (reversing judgment of conviction where ‘‘pri-
mary defense witness’’ refused to answer some ques-
tions before jury as to certain directly relevant details
of alleged conspiracy, although ‘‘testimony she gave in
. . . voir dire was detailed and contradicted, or offered
innocent explanations to, [the] damaging testimony’’ of
state’s primary witness). Here, by contrast, there is no
reason to believe that the three witnesses’ testimony
during the defense case-in-chief would have been any-
thing other than a rehash of their prosecution testi-
mony, which, if believed, already tended to exonerate
the defendant from each of the crimes charged. Each
testified at length, favorably to the defendant, both
when the state examined them during its case-in-chief
and when the defendant cross-examined them.
Although it is possible that the witnesses would have
provided additional exculpatory details when called as
defense witnesses, nothing in the record indicates what
those details would have been.12 See United States v.
Triumph Capital Group, Inc., 237 Fed. Appx. 625, 630
(2d Cir. 2007) (‘‘[N]o one knows what [the witnesses]
would have testified to since they refused to comment
on the matter. [The defendant’s] speculation that [they]
would have testified in [his] favor is not sufficient to
prove that their testimony would have been exculpa-
tory.’’). The defendant has failed to show that any addi-
tional testimony the three witnesses may have provided
as defense witnesses was essential to his defense.
Likewise, under the prosecutorial misconduct theory,
a defendant must show that the testimony at issue was
‘‘not cumulative’’ and that he had ‘‘no other source to
get the evidence.’’ State v. Kirby, supra, 280 Conn. 404.
The defendant has provided no indication of what new
exculpatory testimony he would have elicited from
these three witnesses during his case-in-chief. At oral
argument before this court, the defendant’s counsel was
specifically asked what additional details the defendant
was prevented from eliciting from these three wit-
nesses, and she provided none. Accordingly, the defen-
dant has failed to show that the witnesses’ excluded
testimony would not have been cumulative and that he
had no other source to get the evidence.
We thus conclude that the state was not constitution-
ally required to grant additional immunity to Bugg,
Vance, and Oliphant when they testified as defense wit-
nesses.
2
The defendant also argues that the court improperly
failed to compel Bugg, Vance, and Oliphant to testify
when they asserted their fifth amendment rights as
defense witnesses, because at that point, as a result of
the immunity that the state had granted them during
its case-in-chief, they were no longer exposed to prose-
cution and thus had no valid fifth amendment right to
assert.13 We conclude that the court properly refused
to compel these witnesses to answer some questions,
that the court improperly refused to compel them to
answer other questions, and that any error was harm-
less because all of the testimony improperly excluded
was cumulative.
We begin with our standard of review. ‘‘A ruling on
the validity of a witness’ fifth amendment privilege is
an evidentiary determination that this court will review
under the abuse of discretion standard. . . . It is well
settled that the trial court’s evidentiary rulings are enti-
tled to great deference. . . . The trial court is given
broad latitude in ruling on the admissibility of evidence,
and we will not disturb such a ruling unless it is shown
that the ruling amounted to an abuse of discretion.’’
(Internal quotation marks omitted.) State v. Luther, 152
Conn. App. 682, 699, 99 A.3d 1242, cert. denied, 314
Conn. 940, 108 A.3d 1123 (2014).
‘‘[W]hen an improper evidentiary ruling is not consti-
tutional in nature, the defendant [also] bears the burden
of demonstrating that the error was harmful. . . .
[W]hether [the improper exclusion of a witness’ testi-
mony] is harmless in a particular case depends upon a
number of factors, such as . . . whether the testimony
was cumulative . . . [and] the extent of cross-exami-
nation otherwise permitted . . . . Accordingly, a non-
constitutional error is harmless when an appellate court
has a fair assurance that the error did not substantially
affect the verdict.’’ (Internal quotation marks omitted.)
State v. Payne, 303 Conn. 538, 558–59, 34 A.3d 370
(2012).
‘‘The standard for determining whether to permit
invocation of the privilege against self-incrimination is
well established. To reject the invocation it must be
perfectly clear, from a careful consideration of all the
circumstances in the case, that the witness is mistaken,
and that the answer[s] cannot possibly have [a] ten-
dency to incriminate the witness. . . . The right to the
privilege does not depend upon the likelihood of prose-
cution but upon the possibility of prosecution.’’ (Cita-
tions omitted; emphasis in original; internal quotation
marks omitted.) State v. Giraud, 258 Conn. 631, 640,
783 A.2d 1019 (2001).
Here, all but three of the questions as to which Bugg,
Vance, and Oliphant asserted their fifth amendment
rights during the defendant’s case-in-chief were ques-
tions that they had already answered during the state’s
case-in-chief. The three new questions were: (1) to
Bugg, what his cousin stole from him; (2) to Vance,
whether he called a person named Karen Atkins in
June, 2012; and (3) to Oliphant, what he meant when
he testified during the state’s case-in-chief that he felt
guilty about Vance.
As to the three new questions, we are unable to con-
clude that the court abused its discretion in sustaining
the witnesses’ invocation of their fifth amendment
rights. We note that ‘‘[i]n appraising a fifth amendment
claim by a witness, a judge must be governed as much
by his personal perception of the peculiarities of the
case as by the facts actually in evidence.’’ (Internal
quotation marks omitted.) Martin v. Flanagan, 259
Conn. 487, 495–96, 789 A.2d 979 (2002). ‘‘To sustain the
privilege, it need only be evident from the implications
of the question, in the setting in which it is asked, that
a responsive answer to the question or an explanation of
why it cannot be answered might be dangerous because
injurious disclosure could result.’’ (Internal quotation
marks omitted.) Id., 495. As to the first question, the
nature of what Bugg’s cousin stole from him could have
incriminated Bugg if the item was contraband. As to
the second and third questions, the record sheds little
light on their significance. Accordingly, on this record,
we cannot second-guess the determination of the trial
court. We conclude that the court did not abuse its
discretion in sustaining the witnesses’ invocation of
their fifth amendment rights when they were asked
about these three transactions, as to which they
lacked immunity.14
By contrast, as to those questions that the witnesses
had already answered during the state’s case-in-chief,
§ 54-47a foreclosed any possibility of prosecution for
the transactions, matters, and things at issue. Accord-
ingly, further questions about those same issues did not
implicate the witnesses’ fifth amendment right against
self-incrimination.15 The court abused its discretion in
sustaining the witnesses’ invocations of their fifth
amendment rights as to those issues.16
We conclude, however, that this error was harmless.17
Here, each witness already had testified and been cross-
examined at length, on the same issues, during the
state’s case-in-chief. We thus conclude that the defen-
dant has failed to meet his burden of proving that the
improper exclusion of these witnesses’ testimony to
the same effect during his case-in-chief was harmful.
Because the court did not permit the state to revoke
these witnesses’ immunity and properly held that the
state need not grant them additional immunity when
they were called as defense witnesses, and because
the court’s failure to compel these three witnesses to
reiterate testimony as defense witnesses was harmless,
the defendant’s first claim fails.
II
The defendant’s second group of claims entails three
alleged evidentiary errors: (1) that the court improperly
admitted uncharged misconduct evidence suggesting
that the defendant had a gun one week before the shoot-
ing and four months after the shooting; (2) that the court
improperly admitted a prior inconsistent statement by
Bugg to impeach his trial testimony that he had never
discussed the shooting with his cousin; and (3) that the
court improperly permitted the state’s lead detective,
Slavin, to testify, in the course of describing how the
investigation proceeded, about various witnesses’ state-
ments to the police.
We begin by setting forth the standard of review. ‘‘We
review the trial court’s decision to admit evidence, if
premised on a correct view of the law . . . for an abuse
of discretion.’’ State v. Saucier, 283 Conn. 207, 218, 926
A.2d 633 (2007); see also State v. Douglas F., 145 Conn.
App. 238, 246, 73 A.3d 915 (because ‘‘[t]he trial court
has broad discretion in ruling on the admissibility . . .
of evidence . . . [t]he trial court’s ruling on evidentiary
matters will be overturned only upon a showing of a
clear abuse of the court’s discretion’’ [internal quotation
marks omitted]), cert. denied, 310 Conn. 955, 81 A.3d
1181 (2013). ‘‘In determining whether there has been
an abuse of discretion, every reasonable presumption
should be given in favor of the trial court’s rulings on
evidentiary matters.’’ (Internal quotation marks omit-
ted.) State v. Gauthier, 140 Conn. App. 69, 79–80, 57
A.3d 849, cert. denied, 308 Conn. 907, 61 A.3d 1097
(2013).
‘‘[W]hen an improper evidentiary ruling is not consti-
tutional in nature, the defendant bears the burden of
demonstrating that the error was harmful. . . .
[W]hether [the improper admission of a witness’ testi-
mony] is harmless in a particular case depends upon a
number of factors, such as the importance of the wit-
ness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony
of the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case. . . . Most
importantly, we must examine the impact of the
[improperly admitted] evidence on the trier of fact and
the result of the trial. . . . [T]he proper standard for
determining whether an erroneous evidentiary ruling
is harmless should be whether the jury’s verdict was
substantially swayed by the error. . . . Accordingly, a
nonconstitutional error is harmless when an appellate
court has a fair assurance that the error did not substan-
tially affect the verdict.’’ (Internal quotation marks omit-
ted.) State v. Payne, supra, 303 Conn. 558–59.
We address each of the defendant’s three evidentiary
claims in turn.
A
The defendant first challenges the court’s admission
of testimony from two witnesses about whether he pos-
sessed a gun on two occasions other than the night of
the shooting, arguing that such evidence of uncharged
misconduct was more prejudicial than probative. Even
if the court improperly admitted this testimony, which
we do not conclude, nevertheless, it was harmless.
In this regard, the defendant first challenges the
court’s admission of a portion of Oliphant’s testimony
during which the prosecutor asked if Oliphant had told
the police about an incident on January 9, 2010, when
the defendant allegedly shot someone in the groin at a
bar fight. Initially, the state sought to admit this testi-
mony for substantive purposes, to prove that the defen-
dant possessed a gun nine days before the Diamond
Court robbery and thus had the means to commit the
Diamond Court robbery. The defense objected that it
was more prejudicial than probative. The court ruled
that the state could ask Oliphant only whether the
defendant had a gun on January 9 because gun posses-
sion then was relevant to ‘‘an element of the fifth count
of the information,’’18 and ‘‘[t]hat is an exception where
[the evidence is relevant to] an element of the crime,
[and that] is one of the reasons why uncharged miscon-
duct can be allowed.’’ See Conn. Code Evid. (2009) § 4-
5 (b) (‘‘[e]vidence of other crimes, wrongs or acts of a
person is admissible . . . to prove . . . an element of
the crime’’).
The state, however, sought to ask about the details
of the January 9, 2010 incident as well, to the extent
that Oliphant had described them in his statement to
the police but repudiated that statement at trial. The
prosecutor made an offer of proof outside the presence
of the jury, during which she examined Oliphant line
by line on his police statement about the January 9
incident. Oliphant categorically denied that he ever gave
such a statement and added that he had ‘‘never seen [the
defendant] with a gun.’’ After the proffer, the defense
renewed its objection to the testimony. The court ruled
that it would allow the questions ‘‘only for purposes of
[the] impeachment and credibility of Mr. Oliphant,’’ and,
when the jury returned to the courtroom, the court
instructed it accordingly. The state then examined Oli-
phant line by line on the statement he had given to
police about the defendant shooting another person in
the groin one week before the Diamond Court shooting.
Oliphant categorically denied giving such a statement
to the police and added that he had ‘‘never seen [the
defendant] with a gun ever.’’
The second piece of uncharged misconduct evidence
that the defendant claims the court improperly admitted
is the portion of his uncle Omar’s testimony in which
Omar said that he saw the defendant with a gun on
May 8, 2010. Initially, the state sought to admit the
testimony to prove that the defendant possessed a gun
four months after the Diamond Court shooting; the
defense objected that such testimony was more prejudi-
cial than probative; and the court ruled that the testi-
mony was admissible under § 4-5 (b) of the (2009)
Connecticut Code of Evidence as relevant to an element
of the fifth count of the information.19 After an extensive
offer of proof by the state, the defense also objected that
the testimony was not relevant to the gun possession
charge in count five because the May 8, 2010 gun was
not the gun that the defendant allegedly possessed on
January 18, 2010. The state argued that the defendant’s
possession of a different gun four months later was still
relevant to whether the defendant possessed a gun on
the night of the Diamond Court shooting. The court
ruled that Omar’s testimony that the defendant pos-
sessed a different gun four months after the Diamond
Court shooting was not relevant to establish an element
of the fifth count of the information but was admissible
together with the testimony about gun possession on
January 9, 2010, and January 18, 2010, as evidence of
‘‘a system of criminal activity’’ of gun possession
engaged in by the defendant, offered to prove the defen-
dant’s intent to rob the victim at Diamond Court.20 See
Conn. Code Evid. (2009) § 4-5 (b) (‘‘[e]vidence of other
crimes, wrongs or acts of a person is admissible . . .
to prove . . . a system of criminal activity’’). Omar
then testified that he saw the defendant with a handgun
on May 8, 2010. In its jury charge, the court instructed
the jury that the testimony about gun possession on
May 8, 2010, was admitted ‘‘solely to show or establish
a system of criminal activity being engaged in by the
defendant.’’
Even if the court had improperly admitted both of
these portions of testimony, which we do not conclude,
we hold that the defendant has nevertheless failed to
carry his burden of proving that the jury’s verdict was
substantially swayed by its admission. See, e.g., State
v. Sanseverino, 287 Conn. 608, 637, 949 A.2d 1156 (2008)
(‘‘[e]ven if we were to assume, without deciding, that
the trial court improperly admitted the evidence . . .
we conclude that the defendant failed to meet his bur-
den of providing that such impropriety was harmful’’),
overruled in part on other grounds by State v. DeJesus,
288 Conn. 418, 437, 953 A.2d 45 (2008), and superseded
in part after reconsideration by State v. Sanseverino,
291 Conn. 574, 579, 969 A.2d 710 (2009), overruled in
part on other grounds by State v. Payne, 303 Conn. 538,
548, 34 A.3d 370 (2012).
The defendant acknowledges that his claim is eviden-
tiary, not constitutional, in nature. ‘‘[W]hen an improper
evidentiary ruling is not constitutional in nature, the
defendant bears the burden of demonstrating that the
error was harmful. . . . [W]hether [the improper
admission of a witness’ testimony] is harmless in a
particular case depends upon a number of factors, such
as the importance of the witness’ testimony in the prose-
cution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise per-
mitted, and, of course, the overall strength of the prose-
cution’s case. . . . Most importantly, we must examine
the impact of the [improperly admitted] evidence on
the trier of fact and the result of the trial. . . . [T]he
proper standard for determining whether an erroneous
evidentiary ruling is harmless should be whether the
jury’s verdict was substantially swayed by the error.
. . . Accordingly, a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) State v. Payne, supra, 303
Conn. 558–59.
First, this testimony was not particularly important
to the prosecution’s case. Whether the defendant had
a gun on January 9, 2010,21 or on May 8, 2010, was
ancillary to the central issue of the case, namely,
whether the defendant participated in the robbery and
shooting of the victim on January 18, 2010. The state
presented ample evidence of the robbery, as discussed
subsequently in connection with the strength of the
prosecution’s case.
Second, evidence that the defendant possessed a gun
weeks before or months after the shooting was largely
superfluous because there was also evidence that he
possessed a gun on the night of the shooting.
Third, as to corroborating or contradictory evidence,
multiple witnesses either testified or admitted in state-
ments to the police, which the state previously had
submitted into evidence, that they saw the defendant
with a gun on the night of the shooting or on other
nights, while several witnesses—most notably Bugg and
Vance, in direct contradiction to their police state-
ments—testified that they had never seen the defendant
with a gun. Neither Oliphant’s nor Omar’s testimony
was unique or pivotal in this regard.
Fourth, the defendant was able adequately to cross-
examine both Oliphant and Omar. Oliphant testified
favorably to the defense during both direct and
cross-examination.
Fifth and finally, the prosecution’s case was strong.
The state’s case comprised more than thirty witnesses
and more than 200 exhibits over the course of fifteen
days of testimony.
The victim’s mother testified that, from the family
apartment, she saw two people with physiques similar
to the defendant and Vance both shoot at the victim at
approximately 9:40 p.m. on January 18, 2010. The vic-
tim’s brother testified that, from the family apartment,
he saw the defendant and a second man both shoot at
the victim a little after 9:30 p.m. on January 18, 2010.
The state submitted the prior statements and testi-
mony of the defendant’s two accomplices, Bugg and
Vance, both of whom initially confessed to the armed
robbery in those statements and testimony. Although
they recanted their confessions once they received plea
deals and testified favorably to the defense at trial, the
state impeached them with phone call recordings in
which Bugg seemingly asked various relatives to help
him coordinate his testimony with Vance, saying at one
point that Vance had agreed to ‘‘take the whole charge’’
in exchange for some money.
Oliphant and his then girlfriend, Sade Stevens, both
gave statements to police that they had heard the defen-
dant and Vance confess to robbing and shooting the
victim when they came to Oliphant’s apartment on the
night of January 18, 2010, although they, too, partially
recanted those statements at trial and claimed instead
that Vance alone confessed that he robbed and shot
the victim.
The state’s crime scene technicians and its ballistics
expert determined that the four bullet cores recovered
from the crime scene plus the intact bullet recovered
from the victim’s body were .38 class bullets, fired from
a .38 Special revolver, a .357 Magnum revolver, or a
nine millimeter pistol. Because pistols eject bullet cas-
ings when fired, however, the state’s ballistics expert
testified that the lack of casings found at the crime
scene was consistent with the shots being fired from
a revolver. Multiple witnesses either testified or gave
statements to police that were admitted into evidence
to the effect that the defendant had a .38 revolver and
that Vance had a .357 revolver, which they had with
them on the night of the shooting.
Phone records showed that, at approximately the
time of the shooting, the defendant’s cell phone
reflected several calls from the area of Diamond Court.
Various neighbors saw a four door white car driving
through Diamond Court just before the shooting and
speeding out of Diamond Court just after the shooting.
The defendant’s aunt testified that, on the night of the
shooting, she had lent the defendant her rental car—a
four door, white Hyundai—and that they returned the
car to the rental company the next day.
The defendant himself testified that, on the night of
the shooting, he and Vance dressed all in black and
drove to Diamond Court with Bugg in the defendant’s
white rental car; that they parked behind the apart-
ments; that the defendant and Vance exited the car and
walked first toward the man in the SUV, then toward
the victim after they realized the man in the SUV had
children; that Vance fired shots in the victim’s direction;
that Bugg pulled up in the car; that the defendant and
Vance got in; and that Bugg drove off. The defendant
claimed, however, that they never agreed or tried to rob
anyone; Vance had gotten into an unrelated altercation
with the victim, on his own, and shot him for that
reason. The state introduced into evidence phone call
recordings in which the defendant repeatedly told his
mother to convince one of the prosecution witnesses
to invoke her fifth amendment rights if called to testify.
As a result, we conclude that the defendant has failed
to carry his burden of proving that the jury’s verdict
was substantially swayed by the admission of evidence
that he had a gun one week before or several months
after the shooting.
B
As to Bugg’s prior inconsistent statement, the defen-
dant challenges the court’s admission of the testimony
of Bugg’s cousin, Foote, about Bugg’s confession to him
during a car ride several weeks after the shooting. We
conclude that the court properly admitted that testi-
mony for the limited purpose of impeaching Bugg’s
credibility.
The following additional facts and procedural history
are relevant to this claim. Initially, the state sought to
admit the challenged testimony for substantive pur-
poses, arguing that, although it was hearsay, it fell under
the coconspirator exception to the prohibition on hear-
say,22 but the state later conceded that the coconspirator
exception did not apply. Instead, the state sought to
admit the testimony solely for impeachment purposes,
as extrinsic evidence of a prior inconsistent statement
by Bugg. The state argued that, under the Connecticut
Code of Evidence, ‘‘it’s within the judicial discretion of
the trial court whether to admit the impeaching state-
ments where no foundation has been laid.’’ See Conn.
Code Evid. § 6-10 (c) (‘‘[i]f a prior inconsistent state-
ment made by a witness is not . . . disclosed to the
witness at the time the witness testifies, and if the
witness admits to making the statement, extrinsic evi-
dence of the statement is inadmissible, except in the
discretion of the court’’ [emphasis added]). The defense
objected to the testimony as hearsay and argued that,
if the state wished to use it as an inconsistent statement,
then it should have disclosed it to Bugg when he tes-
tified.
After reviewing the transcript of Bugg’s earlier trial
testimony, the court noted that Bugg twice had denied
confessing to Foote, once when asked directly if ‘‘there
came a point in time where [he] told [Foote] what had
happened on Diamond Court’’—Bugg replied, ‘‘[n]o’’—
and, second, when Bugg was asked if his statement to
police that ‘‘[t]he only one [he] told about this [was
his] cousin Marquis[e] Foote’’ was true—Bugg replied,
‘‘[n]o.’’ The court ruled that Foote could testify to Bugg’s
prior inconsistent statement, but that such testimony
would be admissible only for the limited purpose of
impeaching Bugg.
Accordingly, before Foote testified to his conversa-
tion with Bugg, the court instructed the jury as follows:
‘‘Ladies and gentlemen, I talked to you when we first
began the trial about evidence admitted for a limited
purpose. Any comments that Mr. Bugg made to Mr.
Foote, they can be used by you only for purposes of
evaluating the credibility of Mr. Bugg; you can’t use
them for any other purpose. So, to the extent that you
find them [relevant] you can use them, but only insofar
as they relate to the credibility of Mr. Bugg; they are
not to be used by you . . . these statements are not
to be used by you for substantive purposes. So, this is
a limit[ed] inquiry, credibility only, not for substan-
tive purposes.’’
Foote testified that three or four weeks after the
shooting, he and Bugg were driving around smoking
pot when Bugg confided in him what had happened on
the night of the shooting. Foote recalled that Bugg had
said that he, Vance, and the defendant were out looking
to rob someone that night. They saw the victim and
decided to rob him. The defendant and Vance got out
of the car and put a gun in the victim’s face, which
he pushed away. The victim then ran away and the
defendant and Vance shot him. The state asked if Bugg
had ever told Foote that, on the night of the shooting,
he, the defendant, and Vance were there to buy mari-
juana, or to settle a debt. Foote testified that Bugg had
not told him such a story.
At the end of the trial, the court again instructed the
jury: ‘‘The testimony of Marquise Foote was admitted
only for impeachment purposes as to Rayshaun Bugg.
Any other use of that testimony would be improper.’’
We begin by setting forth the applicable law. Section
6-10 (a) of the Connecticut Code of Evidence provides:
‘‘The credibility of a witness may be impeached by
evidence of a prior inconsistent statement made by the
witness.’’ Our Supreme Court has held that ‘‘[i]mpeach-
ment of a witness by the use of a prior inconsistent
statement is proper only if the two statements are in
fact inconsistent. . . . Moreover, the inconsistency
must be substantial and relate to a material matter.’’
(Citations omitted; emphasis omitted.) State v. Rich-
ardson, 214 Conn. 752, 763, 574 A.2d 182 (1990).
Section 6-10 (c) of the Connecticut Code of Evidence
provides in relevant part that ‘‘[i]f a prior inconsistent
statement made by a witness is not . . . disclosed to
the witness at the time the witness testifies, extrinsic
evidence of the statement is inadmissible, except in the
discretion of the court.’’ (Emphasis added.) This court
has held that ‘‘[w]e have no inflexible rule regarding
the necessity of calling the attention of a witness on
cross-examination to his alleged prior inconsistent
statements before either questioning him on the subject
or introducing extrinsic evidence tending to impeach
him.’’ (Internal quotation marks omitted.) State v. Gau-
thier, supra, 140 Conn. App. 79. Rather, trial ‘‘[c]ourts
have wide discretion whether to admit prior inconsis-
tent statements that have not satisfied the typical foun-
dational requirements in § 6-10 (c) of the Connecticut
Code of Evidence . . . .’’ (Internal quotation marks
omitted.) Id., 80.
Here, the defendant argues that the court abused its
discretion in admitting Foote’s testimony under § 6-10
(c) of the Connecticut Code of Evidence, as extrinsic
evidence of a prior inconsistent statement by Bugg. In
view of all the circumstances, we conclude that the
court reasonably decided (1) that Bugg’s confession to
Foote was substantially inconsistent with both his
denial of having made such a confession and with his
testimony at trial about driving to Diamond Court only
to buy marijuana from the ‘‘weed man’’ on the night of
the shooting; and (2) that the issue of whether the
jury should believe Bugg’s statement to police that the
defendant and Vance committed the crimes charged,
or Bugg’s testimony at trial that they merely attempted
to buy marijuana, was material to the defendant’s guilt
or innocence. Accordingly, the court did not abuse its
discretion in admitting the challenged testimony for the
limited purpose of impeaching Bugg.23
C
The defendant dresses his third and final evidentiary
claim in constitutional garb, arguing that ‘‘the trial court
erred in permitting lead detective . . . Slavin to testify
about and comment on hearsay information police
received from the state’s witnesses, [that the admission
of this testimony] violated the defendant’s rights to
confrontation and cross-examination, [that the admis-
sion of this testimony] invaded the province of the jury
as to both witness credibility and critical disputed facts,
and [that the admission of this testimony] was contrary
to the rules of evidence.’’ (Internal quotation marks
omitted.) The defendant argues that the court permitted
Slavin to testify as a ‘‘super-witness’’ who filtered the
testimony of other witnesses for the jury. We conclude
that the court properly admitted Slavin’s testimony for
the limited purpose of explaining how the police investi-
gation proceeded.
The following additional facts and procedural history
are relevant to this claim. Near the end of the state’s
case-in-chief, the state recalled Slavin as a witness so
that he could testify about how the police investigation
of the January 18, 2010 shooting proceeded. As part of
this testimony, the state planned to ask Slavin about
the statements that various witnesses had given to
police. The defense objected that such testimony would
be both improper hearsay and improper commentary
on the testimony of other witnesses. The court ruled
that such testimony was admissible, but only ‘‘with
respect to individuals that have already testified,’’ and
‘‘only for the purpose of [showing] how that affected
the [police] investigation . . . [not] for any other pur-
pose.’’ The court added that it would be giving the jury
a limiting instruction and, accordingly, instructed the
jury as follows:
‘‘You’re also going to hear testimony about what some
of the witnesses said to the police—witnesses that have
already testified here in front of you. That—those com-
ments by Lieutenant Slavin about what a witness said,
that is not intended in any way to affect your individ-
ual determination of the credibility of that witness
as they—as they sat here on the [witness] stand and
testified. The whole purpose of this testimony by Lieu-
tenant Slavin is to give you, in context, how the police
investigation proceeded. So, there are going to be some
comments about other things you’ve heard here from
other witnesses. That’s not to be used for any purpose
other than how the police reacted to those responses.
So, you’ve got—we talked about compartments. You’ve
got a compartment for the witness and what the witness
testified to. Then you’ve got a compartment, comments
that Lieutenant Slavin may make about what those wit-
nesses said. Again, only to give you the context of the
police investigation.
‘‘You’ve got to separate that so the fact that I’m going
to allow him to make comments on what somebody
else said doesn’t mean in any way, shape, or form that
you should treat that testimony any differently than
I instructed you to treat all the testimony, which is to
take everybody individually and treat them by the
same standard.’’ (Emphasis added.) The court clarified,
‘‘[and] if I said, what they said, I didn’t mean in any
[way] to support anything that anybody said. I’m just
trying to apply the rules as best I can. You’ve got to
determine the credibility. That’s your job, not my job.’’
Slavin testified as follows about the investigation and
the role that various witnesses’ police statements
played in it. Ten days after the shooting, the police
received a tip. On the basis of that tip, he entered two
nicknames into a police database and came up with the
names of the defendant and Oliphant. He searched the
Judicial Branch website for those names and found that
the defendant received a ticket a few days before the
shooting. From the police report of that incident, he
obtained the defendant’s phone number and a descrip-
tion of the car he drove, which matched the car seen
on the night of the shooting. He also learned of a third
individual, Vance, who was with the defendant when
he was ticketed.
One year later, on January 5, 2011, Foote was arrested
on unrelated charges and told police that he had infor-
mation about the January 18, 2010 shooting. Foote con-
firmed that the defendant, Oliphant, and Vance were
involved and added a fourth name—Bugg. Foote told
police that those individuals tried to rob the victim on
the night of the shooting, that the victim ‘‘disrespected’’
the attempted robbery, that they shot him for that rea-
son, and that Bugg was the getaway driver. Foote did
not give the police a written statement at that time.
The police next interviewed Oliphant and his then
girlfriend, Stevens, who both gave written statements
on February 2, 2011, denying that Oliphant was involved
and asserting that the defendant, Vance, and Bugg were
the culprits. On February 10, 2011, the police inter-
viewed Bugg, who gave a written statement confessing
that he, the defendant, and Vance, but not Oliphant,
attempted the robbery on the night of January 18, 2010.
Bugg’s statement that the defendant and Vance initially
planned to rob a man in an Acura SUV, but changed
plans when they saw he had two children caused one
of the detectives to remember a phone call he received
shortly after the shooting from a friend who was at
Diamond Court picking up his children on the night of
the shooting. On February 16, 2011, police interviewed
him and took a written statement. On February 18, 2011,
the police interviewed Vance’s then girlfriend, Vondella
Riddick, who gave a written statement. Finally, police
traveled to North Carolina where they interviewed
Vance, who gave a written statement on February 22,
2011, confessing that he, the defendant, and Bugg
attempted to rob the victim and ended up shooting him.
At that point, the police arrested the defendant,
Vance, and Bugg. Prior to trial, the police conducted
additional interviews, including a second interview with
Stevens and an interview with the defendant’s aunt,
both of whom gave written statements.
After the state finished questioning Slavin, the
defense cross-examined him. The defense previously
had cross-examined each of the witnesses whose police
statements Slavin discussed in his testimony.
The court’s final charge to the jury at the end of the
trial reiterated that the jurors were ‘‘the sole judges of
the facts,’’ and that they ‘‘must determine the credibility
of police personnel in the same way and by the same
standards as [they] would evaluate the testimony of any
other witness.’’ The charge did not specifically refer-
ence Slavin’s testimony, but instructed the jury gener-
ally that, ‘‘[y]ou will recall that I have ruled that some
testimony and evidence has been allowed for a limited
purpose. Any testimony or evidence which I identified
as being limited to a purpose you will consider only as
it relates to the limits for which it was allowed, and
you shall not consider such testimony or evidence in
finding any other facts as to any other issue.’’
Although the defendant frames his objection to this
testimony in constitutional terms, invoking the sixth
amendment’s confrontation clause24 and the fair trial
component of the fourteenth amendment’s due process
clause,25 his claim is in reality evidentiary in nature. See
State v. Smith, 110 Conn. App. 70, 86, 954 A.2d 202
(‘‘[r]obing garden variety claims [of an evidentiary
nature] in the majestic garb of constitutional claims
does not make such claims constitutional in nature’’
[internal quotation marks omitted]), cert. denied, 289
Conn. 954, 961 A.2d 422 (2008).
As to the defendant’s confrontation clause claim, the
United States Supreme Court has stated that ‘‘when the
declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on
the use of his prior testimonial statements.’’ Crawford
v. Washington, 541 U.S. 36, 60 n.9, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004). Here, the court ‘‘allow[ed]
comments [only] with respect to individuals that ha[d]
already testified’’ at trial, on statements that ‘‘ha[d]
already been presented to the jury . . . .’’ The defen-
dant had an opportunity to cross-examine those wit-
nesses about their statements and so the confrontation
clause was not implicated.26
As to the defendant’s fair trial claim, because we
conclude that the court properly admitted the chal-
lenged testimony and properly instructed the jury as to
its use, the defendant’s right to a fair trial was not
implicated.
Proceeding then to the defendant’s evidentiary
claims, the defendant objects to the testimony on two
grounds: (1) as improper commentary on the testimony
of other witnesses, and (2) as improper hearsay. Neither
objection has merit.
First, the defendant argues that ‘‘Slavin’s testimony
in this case . . . placed an improper gloss on the testi-
mony of other witnesses.’’ (Internal quotation marks
omitted.) Our Supreme Court has held that ‘‘it is
improper to ask a witness to comment on another wit-
ness’ veracity.’’ State v. Singh, 259 Conn. 693, 706, 793
A.2d 226 (2002). ‘‘[I]t is never permissible . . . to ask
a witness to characterize the testimony or statement
of another witness . . . .’’ (Internal quotation marks
omitted.) Id., 707; see also id., 708 (‘‘improper to ask
question designed to cause one witness to characterize
another’s testimony as lying’’); id. (‘‘question to defen-
dant of whether victim lied in testimony improper
because it sought information beyond defendant’s com-
petence’’).
Here, however, Slavin did not comment on the testi-
mony of other witnesses. Although Slavin did testify
about the same underlying facts as other witnesses,
such as the statements that various witnesses gave to
the police, the defendant has cited to no rule that bars
two witnesses from testifying about the same underly-
ing facts. Nor are we aware of any.
Moreover, the defendant’s argument that Slavin
improperly colored the jury’s perception of other wit-
nesses’ testimony ignores that Slavin’s testimony was
not admitted for substantive or credibility purposes.
The court admitted Slavin’s testimony for the limited
purpose of explaining how the police investigation pro-
ceeded, instructed the jurors that his testimony was
‘‘not to be used for any [other] purpose,’’ and specifi-
cally instructed the jurors that Slavin’s testimony should
not ‘‘in any way . . . affect your individual determina-
tion of the credibility of [other] witness[es] as they . . .
sat here on the [witness] stand and testified.’’ See State
v. L.W., 122 Conn. App. 324, 335 n.7, 999 A.2d 5 (court’s
cautionary instructions relevant to analysis of whether
evidence properly admitted), cert. denied, 298 Conn.
919, 4 A.3d 1230 (2010). ‘‘We presume that the jury
followed the instructions as given.’’ State v. Webster,
308 Conn. 43, 58 n.11, 60 A.3d 259 (2013). ‘‘[I]t is well
established that, [i]n the absence of a showing that the
jury failed or declined to follow the court’s instructions,
we presume that it heeded them.’’ (Internal quotation
marks omitted.) Hurley v. Heart Physicians, P.C., 298
Conn. 371, 402, 3 A.3d 892 (2010). Accordingly, we con-
clude that Slavin’s testimony was not improper com-
mentary on the testimony of other witnesses.
Second, the defendant argues that ‘‘Slavin’s testimony
about what codefendants and other witnesses told
police consisted of first level, double, triple and quadru-
ple hearsay.’’ On the contrary, the court did not admit
Slavin’s testimony for its truth, but only to explain ‘‘how
the police investigation proceeded.’’ ‘‘An out-of-court
statement offered to prove the truth of the matter
asserted is hearsay and is generally inadmissible unless
an exception to the general rule applies.’’ (Emphasis
added; internal quotation marks omitted.) State v. Rosa-
rio, 99 Conn. App. 92, 108, 912 A.2d 1064, cert. denied,
281 Conn. 925, 918 A.2d 276 (2007). Evidence offered
for another purpose, however, ‘‘is admissible not as an
exception to the hearsay rule, but because it is not
within the rule.’’ State v. Sharpe, 195 Conn. 651, 661,
491 A.2d 345 (1985). For instance, ‘‘the state may . . .
present evidence to show the investigative efforts made
by the police and the sequence of events as they
unfolded, even if that evidence would be inadmissible
if offered for a different reason.’’ State v. Vidro, 71
Conn. App. 89, 95, 800 A.2d 661, cert. denied, 261 Conn.
935, 806 A.2d 1070 (2002). Here, the state did exactly
that. Accordingly, the challenged testimony was not
improper hearsay.
The court properly admitted Slavin’s testimony for
the limited purpose of explaining how the police investi-
gation proceeded.
III
The defendant’s fifth and final claim is that the court
improperly penalized him with a longer sentence for
electing to go to trial, as revealed by the court’s remarks
at sentencing.
The following additional facts and procedural history
are relevant to this claim. Before being sentenced, the
defendant addressed the court to explain that although
‘‘I do accept responsibility for my actions [insofar as]
. . . I feel that if I was living a better life in 2010, I
wouldn’t be sitting right here. [Nevertheless] I did not
shoot [the victim]. I didn’t do it. What I did was see
what happened and didn’t say anything, when the police
questioned me . . . [a]nd I guess that’s the reason why
I’m sitting here today because . . . I was the first per-
son they questioned in this case, [and] if I [had] told
the truth [about] what happened [then] the prosecutor
wouldn’t be over there saying [I] deserve the maximum,
she would have been offering me a deal like she was
offering Bugg to lie . . . [at] my probable cause hear-
ing. And I would be free in—in another five years,
maybe. . . . But since I didn’t say anything this is what
I have to—this is what I have to live with. . . . Once
again, I’m sorry, for y’all loss, but the facts . . . of the
matter, Your Honor, [are that] on these five counts . . .
I’m innocent.’’
After briefly addressing the victim’s family, the court
addressed the defendant: ‘‘Anthony Collymore, your
actions on the night of January 18th, 2010, were com-
pletely random, totally senseless and just vicious in
nature. You shattered [the victim’s] family, left them
with a loss that will linger with them forever. Your
actions clearly demonstrate total indifference to the
laws of our society and a complete disregard for others.
‘‘Furthermore, you are still unwilling to accept full
responsibility for your actions. I cannot get inside your
mind to determine your motives that night to commit
such a senseless act. You should have known that the
decisions that you took that night were going to lead
to a tragic end, and they did.’’ (Emphasis added.) The
court concluded by noting the defendant’s lengthy, vio-
lent criminal record.
At the outset, we note that this unpreserved claim
by the defendant ‘‘is reviewable under the first two
prongs of State v. Golding, [213 Conn. 233, 239, 567
A.2d 823 (1989)] because: (1) the record is adequate
for review as the trial court’s remarks during sentencing
are set forth in the transcripts in their entirety; and (2)
the claim is of constitutional magnitude, as demon-
strated by the defendant’s discussion of relevant author-
ity in his main brief.’’ (Footnote omitted.) State v. Elson,
311 Conn. 726, 756, 91 A.3d 862 (2014). We thus turn
to the third prong of Golding, to determine whether
‘‘the alleged constitutional violation . . . exists and
. . . deprived the [defendant] of a fair trial.’’ (Internal
quotation marks omitted.) In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015).
As to whether a constitutional violation exists, it is
‘‘clearly improper’’ to increase a defendant’s sentence
‘‘based on [his or her] decision to stand on [his or her]
right to put the [g]overnment to its proof rather than
plead guilty . . . .’’ (Emphasis omitted; internal quota-
tion marks omitted.) State v. Elson, supra, 311 Conn.
758. Nevertheless, a defendant’s ‘‘ ‘general lack of
remorse’ ’’; id., 761–62; and ‘‘ ‘refusal to accept responsi-
bility’ ’’; id., 783; for crimes of which he was convicted
are ‘‘ ‘legitimate sentencing considerations’ . . . .’’ Id.,
761. ‘‘[R]eview of claims that a trial court lengthened
a defendant’s sentence as a punishment for exercising
his or her constitutional right to a jury trial should be
based on the totality of the circumstances. . . . [T]he
burden of proof in such cases rests with the defendant.’’
(Internal quotation marks omitted.) Id., 759.
Here, the defendant argues that the court’s comment
at sentencing that he was ‘‘still unwilling to accept full
responsibility for [his] actions’’ proves that the court
improperly lengthened his sentence as punishment for
electing to go to trial. We disagree. In context, that
language was a comment on the defendant’s remarks
at sentencing, in which the defendant continued to
blame his predicament in large part on his quality of
life and on the prosecutor, rather than accept full
responsibility for his own actions. In context, the court’s
remark was proper commentary on the defendant’s
‘‘ ‘general lack of remorse’ ’’; State v. Elson, supra, 311
Conn. 761–62; and ‘‘ ‘refusal to accept responsibility’
. . . .’’27 Id., 783; see also State v. West, 167 Conn. App.
406, 419, A.3d (2016) (rejecting similar claim).
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendant was also found guilty of a second count of attempted
robbery in the first degree in violation of §§ 53a-49 (a) (2) and 53a-134 (a)
(4), but the court vacated that finding at sentencing, pursuant to State v.
Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013).
2
The state’s ballistics expert noted that a .38 class bullet could be fired
from a nine millimeter pistol, a .38 Special revolver, or a .357 Magnum
revolver.
3
See State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86 (‘‘[w]e, therefore,
adopt today a rule allowing the substantive use of prior written inconsistent
statements, signed by the declarant, who has personal knowledge of the
facts stated, when the declarant testifies at trial and is subject to cross
examination’’), cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598
(1986).
4
The multiple, overlapping nature of these witnesses’ testimony requires
a more detailed presentation of the facts than is ordinarily necessary.
5
The following colloquy occurred during defense counsel’s questioning
of Oliphant:
‘‘[Defense Counsel]: Now, you testified at the trial that you felt guilty,
that—you felt guilty about Vance Wilson. Can you explain that?
‘‘[The Witness]: I plead the fifth. . . .
‘‘[Defense Counsel]: You indicated during your direct testimony that you
felt guilty. What was that reference?
‘‘[Oliphant’s Counsel]: He took the fifth amendment to that question.’’
6
The sixth amendment rights to compulsory process and to present a
defense are made applicable to the states through the fourteenth amend-
ment’s due process clause. State v. Andrews, 313 Conn. 266, 272 n.3, 96
A.3d 1199 (2014).
7
Although the defendant argues in his brief that the state’s conduct vio-
lated both the federal and state constitutions, he has provided no indepen-
dent analysis under the state constitution, as required by State v. Geisler,
222 Conn. 672, 684–86, 610 A.2d 1225 (1992), and so we limit our review to
the federal constitutional claim. See State v. Allen, 289 Conn. 550, 580 n.19,
958 A.2d 1214 (2008).
8
At trial, the state never specified by what authority it immunized the
three witnesses. The state asserts on appeal, however, that it relied on § 54-
47a for Bugg and Oliphant. As to Vance, the state argues that the record of
his immunity is inadequate to review, but argues in the alternative that its
grant of immunity to Vance was proper, citing a § 54-47a case, State v.
Giraud, 258 Conn. 631, 635 n.3, 638, 783 A.2d 1019 (2001). At no point before
the trial court or this court has the state asserted any other source for its
authority to immunize witnesses. Accordingly, we confine our review to
§ 54-47a. See Furs v. Superior Court, 298 Conn. 404, 411–13, 3 A.3d 912
(2010) (declining to review claim that state has ‘‘inherent authority’’ to
immunize witnesses, because it was not raised before trial court).
9
Here, the state proceeded in the opposite order, first telling the court
that it was granting the witnesses immunity and then having the court
instruct the witnesses that they could no longer refuse to testify on the
basis of their fifth amendment right against self-incrimination.
10
Because a grant of immunity pursuant to § 54-47a necessarily includes
transactional immunity, all three witnesses received such immunity when
the state immunized them during its case-in-chief. See Furs v. Superior
Court, 298 Conn. 404, 411, 3 A.3d 912 (2010) (‘‘the General Assembly intended
to provide both transactional and derivative use immunity to witnesses
compelled under the statute to testify’’). Section 54-47a also confers use
and derivative use immunity, meaning that, in addition, the state cannot use
testimony compelled under § 54-47a—or evidence found as a result of that
testimony—to prosecute the witness for another offense about which the
witness did not testify. See id.; but see Cruz v. Superior Court, 163 Conn.
App. 483, 490 n.5, 136 A.3d 272 (2016) (treating use and derivative use
immunity as wholly contained subset of transactional immunity).
11
For its part, the trial court never explicitly stated whether it viewed the
issue as one of revoking existing immunity or granting additional immunity,
but its comments suggest that it took the latter view.
12
At oral argument before this court, the defendant did argue that trial
counsel was barred during cross-examination in the state’s case-in-chief
from asking certain questions, as they were beyond the scope of the state’s
direct examination, then barred from asking those same questions during the
defense case-in-chief because the witnesses asserted their fifth amendment
rights, and that this sufficed to show that the defense was denied essential
testimony. We disagree, for two reasons.
First, as a legal matter it is not potentially exculpatory questions but
actually exculpatory answers that the defendant must show to sustain his
burden under the effective defense theory. See United States v. Triumph
Capital Group, Inc., 237 Fed. Appx. 625, 629–30 (2d Cir. 2007) (questions
alone not sufficient); see also United States v. MacCloskey, supra, 682 F.2d
475–77, 479 (reversing conviction where witness had previously answered
questions during voir dire outside jury’s presence and answers were detailed
and exculpatory). Here, we cannot speculate as to what the answers to the
defendant’s questions might have been. See New Hartford v. Connecticut
Resources Recovery Authority, 291 Conn. 502, 510, 970 A.2d 578 (2009)
(‘‘speculation and conjecture . . . have no place in appellate review’’ [inter-
nal quotation marks omitted]).
Second, as a factual matter, even if we could speculate as to the answers
to the questions that were asked, we would conclude that such testimony
was cumulative or otherwise obtainable because, here, the witnesses did
answer the vast majority of questions at some point during the trial, and
the only questions that remained unanswered were highly tangential to the
actual issues at hand. See part I B 2 of this opinion.
13
We note that the state, in its brief, did not address the defendant’s
argument that the court improperly sustained these witnesses’ invocation
of their fifth amendment rights.
14
As to the three new questions, the court’s failure to compel Bugg, Vance,
and Oliphant to testify did not violate the defendant’s constitutional rights
because the witnesses asserted a valid fifth amendment right. See State v.
Simms, 170 Conn. 206, 209–10, 365 A.2d 821 (in conflict between witness’
fifth amendment right against self-incrimination and defendant’s right to
compulsory process, fifth amendment right prevails), cert. denied, 425 U.S.
954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976).
15
The defendant also claims, as a procedural matter, that the court erred
by not individually assessing whether each question implicated the witness’
fifth amendment right to remain silent, and instead permitting a ‘‘blanket’’
assertion of that right. We do not address this claim because we conclude
that, even if the procedure was improper, these questions did not implicate
the fifth amendment.
16
As to these questions, the court’s failure to compel Bugg, Vance, and
Oliphant to testify did not violate the defendant’s constitutional rights
because the same testimony already had been presented during the state’s
case-in-chief, and the defendant has identified no compelling tactical reason
why that testimony needed to be repeated in the defense case-in-chief. See
State v. West, 274 Conn. 605, 624–25, 877 A.2d 787 (‘‘[t]he federal constitution
require[s] that criminal defendants be afforded a meaningful opportunity to
present a complete defense . . . [which is] in plain terms the right to . . .
present the defendant’s version of the facts as well as the prosecution’s to
the jury so that it may decide where the truth lies’’ [internal quotation marks
omitted]), cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).
17
The defendant argues that this error was structural and thus not subject
to harmlessness analysis. We disagree. ‘‘[W]e forgo harmless error analysis
only in rare instances involving a structural defect of constitutional magni-
tude. . . . Structural defect cases defy analysis by harmless error standards
because the entire conduct of the trial, from beginning to end, is obviously
affected . . . .’’ (Emphasis altered; internal quotation marks omitted.) State
v. Artis, 314 Conn. 131, 150, 101 A.3d 915 (2014). ‘‘[S]tructural defect cases
contain a defect affecting the framework within which the trial proceeds,
rather than simply an error in the trial process itself. . . . Such errors infect
the entire trial process . . . and necessarily render a trial fundamentally
unfair . . . . Examples of such structural errors include, among others,
racial discrimination in the selection of a grand jury or petit jury and the
denial of a defendant’s right to counsel, right to a public trial, or right to
self-representation.’’ (Citations omitted; internal quotation marks omitted.)
Id., 151. Here, the court’s various evidentiary rulings improperly excluding
testimony that the jury had already heard neither were an error of constitu-
tional magnitude nor ‘‘infect[ed] the entire trial process . . . necessarily
render[ing] [the] trial fundamentally unfair . . . .’’ (Internal quotation marks
omitted.) Id.
18
The fifth count of the information, which charged the defendant with
criminal possession of a firearm in violation of § 53a-217 (a) (1), alleged
that ‘‘on or about January 18, 2010, at approximately 9:42 p.m., at or near
[Diamond Court, the defendant] possessed a firearm and had been convicted
of a felony.’’
19
See footnote 18 of this opinion.
20
The defendant was charged with two counts of attempted robbery in
the first degree in violation of §§ 53a-49 and 53a-134, one count of conspiracy
to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134,
and one count of felony murder with a predicate felony of robbery.
21
The court instructed the jury that it could use the testimony about
January 9, 2010, only to assess Oliphant’s credibility, not for substantive
purposes. The defendant argues that the jury would have ignored this clear
instruction and instead used the evidence substantively. ‘‘[I]t is well estab-
lished that, [i]n the absence of a showing that the jury failed or declined to
follow the court’s instructions, we presume that it heeded them.’’ (Internal
quotation marks omitted.) Hurley v. Heart Physicians, P.C., 298 Conn. 371,
402, 3 A.3d 892 (2010). Nevertheless, in determining whether evidence is
more prejudicial than probative, a court must assess the risk that a jury
will ignore such instructions and use evidence for an improper purpose.
See State v. Busque, 31 Conn. App. 120, 124–25, 129–32, 623 A.2d 532 (1993)
(reversing conviction where evidence was such that jury likely used it for
improper purpose, despite court’s clear instruction), appeal dismissed, 229
Conn. 839, 643 A.2d 1281 (1994). Because the defendant here does not
challenge the admission of the January 9 gun possession testimony to the
extent that the jury properly used it to assess Oliphant’s credibility, in our
analysis of harmlessness we consider the risk that the jury improperly used
that testimony for substantive purposes.
22
See Conn. Code Evid. § 8-3 (‘‘[t]he following are not excluded by the
hearsay rule . . . [1] . . . [a] statement that is being offered against a party
and is . . . [D] a statement by a coconspirator of a party while the conspir-
acy is ongoing and in furtherance of the conspiracy’’).
23
The defendant also argues that Foote’s testimony was improper hearsay.
We disagree. ‘‘An out-of-court statement offered to prove the truth of the
matter asserted is hearsay and is generally inadmissible unless an exception
to the general rule applies.’’ (Emphasis added; internal quotation marks
omitted.) State v. Rosario, 99 Conn. App. 92, 108, 912 A.2d 1064, cert. denied,
281 Conn. 925, 918 A.2d 276 (2007). Evidence offered for another purpose,
however, ‘‘is admissible not as an exception to the hearsay rule, but because
it is not within the rule.’’ State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345
(1985). Here, the court twice instructed the jury that the evidence was
admitted solely for impeachment. ‘‘It is a fundamental principle that jurors
are presumed to follow the instructions given by the judge.’’ (Internal quota-
tion marks omitted.) State v. Williams, 258 Conn. 1, 15 n.14, 778 A.2d
186 (2001).
24
The sixth amendment to the United States constitution provides in
relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him . . . .’’
The sixth amendment right to confrontation is made applicable to the
states through the due process clause of the fourteenth amendment. See,
e.g., Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).
25
The defendant argues that this testimony violated his ‘‘right to have his
jury determine issues of credibility and fact’’ and that this ‘‘state[s] [a claim]
of constitutional magnitude.’’ Although he does not specify under what
provision of the constitution he asserts this right, we gather from the cases
he cites that it is essentially a ‘‘fair trial’’ claim under the due process
clause of the fourteenth amendment to the United States constitution, which
provides in relevant part: ‘‘nor shall any State deprive any person of life,
liberty or property, without due process of law . . . .’’
26
Although Slavin did testify, in one instance, to the out-of-court statement
of a nonwitness, we conclude that the defendant waived any challenge to
that testimony. At trial, the state asked Slavin how the police first learned
who was involved in the shooting. Slavin began to say that they had received
a tip but defense counsel interrupted, objecting ‘‘as to what the tip might
have been’’ on the ground that it was hearsay. The state claimed it for its
effect on the listener, the court overruled the objection, and Slavin testified
that the police ‘‘received a tip from a young lady who overheard some people
talking on a bus that a party named Rex and Stacks or . . . Dreads were
. . . the ones responsible for killing [the victim].’’ The court then excused
the jury and held a sidebar, at which defense counsel asked the court to
strike the testimony about ‘‘the tip information’’ but expressly agreed that
the state could ‘‘ask the question, you heard something, you got a tip, and
then as a result of that tip, what did you do. It doesn’t have to have what
the tip is.’’ The court adopted that position, ruling that Slavin could testify
that ‘‘the authorities [got] a tip and act[ed] on that’’ but could not testify
that ‘‘the tip said (a), (b), or (c).’’ When the court reiterated that the state
could ask about ‘‘[t]he fact . . . [that police] got a tip,’’ the state asked,
‘‘[b]ut that’s where the objection would l[ie] for [defense counsel],’’ and the
court replied: ‘‘That’s not what I heard. What I heard was, the issue was
with respect to the content of the conversation from someone outside of
the authorities. Am I correct in that?’’ (Emphasis added.) Defense counsel
replied, ‘‘Yes.’’ The court then brought the jury back into the courtroom,
instructing the jurors that it was striking the testimony they had heard about
the tip and that although Slavin would be testifying about what others had
said, such testimony was ‘‘not to be used for any purpose other than how
the police reacted to those responses . . . to give [jurors] the context of
the police investigation.’’ The state then elicited the following testimony
from Slavin:
‘‘Q. Okay. And now you indicated that at some point in time a tip came
into the Waterbury police?’’
‘‘A. Yes.
‘‘Q. And when was that?
‘‘A. It was on, I believe, January 28th, 2010.
‘‘Q. Okay. And based on that tip, what did you do?
‘‘A. Based on that tip, the—the names that I had to work with, the nick-
names—we have a database of nicknames, street names, that we’ve been
compiling—particularly another sergeant and I—since—for almost ten years
now. We had those nicknames in this list, and the nicknames came out to
be Stacks, which would be [the defendant], and Rex or Dreads, which turned
out, we believed, to be Mr. Oliphant—Jabari Oliphant.’’
Defense counsel did not object to this testimony. Against this background,
‘‘[w]e deem this claim waived, and, therefore, we decline to review it.’’ State
v. Phillips, 160 Conn. App. 358, 369, 125 A.3d 280, cert. denied, 320 Conn.
903, 127 A.3d 186 (2015).
27
On several of his claims, the defendant also asks this court to invoke
its supervisory powers to reverse the judgment of the trial court and remand
the case for a new trial. We decline to do so. ‘‘The exercise of our supervisory
powers is an extraordinary remedy to be invoked only when circumstances
are such that the issue at hand, while not rising to the level of a constitutional
violation, is nonetheless of utmost seriousness, not only for the integrity of
a particular trial but also for the perceived fairness of the judicial system
as a whole.’’ (Emphasis omitted; internal quotation marks omitted.) State
v. Lockhart, 298 Conn. 537, 576, 4 A.3d 1176 (2010). This is not such a case.
Finally, the defendant asks this court ‘‘to review the sealed exhibit [submit-
ted to the court at trial, containing the personnel files of several detectives
who testified] and [to] grant appropriate relief.’’ (Citation omitted.) The
state does not dispute the propriety of such review, but argues that ‘‘unless
the sealed exhibit contains information . . . so compelling that it could
have impacted the outcome at trial,’’ the court did not abuse its discretion
in denying the defendant’s request for those files. At trial, the court agreed
to review the files to determine whether any information in them should
be disclosed to the defendant. It appears that no such information was
disclosed. We have reviewed the sealed files ourselves and conclude that
the court did not abuse its discretion in denying the defendant’s request.